IMAGE could solve a delicate balancing act

Date Published: May 23 2009

By Paul F. P. Pogue

Executives at Swift Co., a nationwide meat-packing business, are familiar with the delicate balancing act required for businesses dealing with illegal labor. In testimony before Congress in 2007, Jack Shandley, senior vice president for human resources at Swift, said the company had long been committed to a legal workforce. They were among the earliest participants in the E-Verify system in 1997, which checks an applicant's legal work status against a federal database.

The legal bind began in 2001, when the Department of Justice sued the company, alleging it subjected job applicants who "look or sound foreign" to greater scrutiny. (Swift settled the case for $200,000 with no admission of wrongdoing.) But in 2006, federal authorities raided six Swift facilities and charged nearly 1,300 employees with immigration status violations; the illegal immigrants were then processed for removal from the United States.

One human resources manager and one union official were charged with harboring illegal aliens. The human resources manager, Christopher Lamb, pleaded guilty and was fined $300 and sentenced to a year's probation. The union official, Braulio Pereyra-Gabino, was convicted at trial, fined $2,000 and sentenced to a year and a day in prison.

"Simply put, a company cannot legally and practically do more than we've done to ensure a legal workforce," Shandley testified. "It's particularly galling to us that an employer who has played by all the rules and used the only available government tool to screen employee eligibility would be subjected to adversarial treatment by our government."

Immigration and Customs Enforcement spokesperson Pat Reilly responds that ICE had informed Swift they were employing illegal aliens and should not have been surprised by the raid. Shandley responds that all of Swift's attempts to negotiate with ICE were rebuffed with the statement: "It was a criminal investigation."

"We told ICE that we would cooperate with them in any way and did not want anyone working for us who was not authorized or had committed a crime like identity theft," Shandley says. "Everyone ICE arrested was verified to work by E-Verify. Bottom line, ICE would not have gotten the media attention and exposure they got had they not raided Swift."

Critics such as the Associated General Contractors of America say employers dealing with illegal labor can quickly find themselves in a tangled web of bureaucracy and no-win situations. All employers are required to check documents that establish identity and employment eligibility for all new hires.

However, it also requires them to accept documents that appear to be genuine and warns that they could face discrimination violations if they are overly selective in which documents they take. Once an employee has been hired, companies are forbidden from revisiting the identity and eligibility forms - known as I-9s - without good reason.

Employers can sign up with the voluntary E-Verify system to double-check documents, but critics say E-Verify doesn't necessarily catch fraudulent documents.

Kelly Knott, director of government relations for the AGC, says the I-9 laws place employers in a difficult spot.

"They get caught in a catch-22 situation because if you have suspicions about [somebody's legal status], you can't ask about it without risking discrimination," Knott says. "If the document looks good, you have to take it."

However, E-Verify is no longer the only tool available to employers. A new program from ICE offers a solution for companies committed to maintaining a legal workforce without violating discrimination laws.

The ICE Mutual Agreement Between Government and Employers - known as IMAGE - is in its infancy, with only nine companies currently signed up since its inception in January 2007. However, Reilly says 300 have applied and that the Department of Homeland Security's goal is for IMAGE certification to become an industry standard.

Companies who sign up for IMAGE must commit to using E-Verify and ICE's practices for legal hiring and arrange for yearly audits of I-9 documents. ICE provides training in recognizing fraudulent documents, conducts an initial I-9 audit, and establishes protocols for reporting and investigating suspicions of illegal workers.

Shandley says Swift does not participate in IMAGE, and recommends that other companies not do so either.

"IMAGE doesn't fix the fundamental problem of exposing identity theft before prospective employees are hired, and it requires that employers submit hiring information to the government after the fact to be audited without giving immunity to the employers."

Although IMAGE does not give specific immunity, Reilly says it protects employers.

"When an employer is accused of knowingly hiring illegal workers, we take into account the circumstances," Reilly says. "Did they do everything in their power to verify their workforce? These options are free, and they're online."

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